Facing the Truth - Paul Eidelberg

Even if were true—which emphatically is not the case—that “the Land of Israel was the birthplace of the Jewish people”—as Prime Minister Benjamin Netanyahu and others have said—this would not entitle the Jewish people to the Land of Israel.  The Canaanites could make an equivalent claim.

With all due respect to attorney Howard Grief, who should have received the Israel Prize even before he published his monumental work The Legal Foundation and Borders of Israel under International Law, positive law is politically irrelevant where it is not backed by the power to enforce it.  As Alexander Hamilton points out in Federalist 15—and I am referring to one of America’s greatest statesman:

It is essential to the idea of a law, that it be attended with a sanction; or, in other words, a penalty or punishment for disobedience. If there be no penalty annexed to disobedience, the resolutions or commands which pretend to be laws will, in fact, amount to nothing more than advice or recommendation. This penalty, whatever it may be, can only be inflicted in two ways, by the agency of courts and ministers of justice, or by military force, by the coercion of the magistracy, or by the coercion of arms.

A legal realist might say “There is no law where it is not enforced.”

In the case of Israel’s title to the Holy Land, one should bear in mind that Israel is at war with an implacable foe, and wars are not won by appeals to law.  Hence, concerning conflicting legal claims to the Land of Israel, it would be wiser for Israel’s government—if it only had the courage—to state the Jewish claim to the Promised Land on the basis of Rashi’s commentary to Genesis 1, where he says in part:

If the nations of the world should say to Israel: “You are robbers, because you have seized by force the lands of the seven nations” [of Canaan], they [Israel] could say to them, “The entire world belongs to the Holy One, Blessed Be He. He created it and gave it to whomever it was right in his eyes.  Of His own will He gave it to them and of His own will He took it from them and gave it to us.”

Against this Torah position, all arguments against the Jewish people’s title to Land of Israel on the basis of international law collapse like a deck of cards. 

Not that learned inquiry concerning international law on this issue is not interesting or enlightening. But the metapolitical conflict over the Land of Israel would remain unresolved.  The issue can only be resolved by war or, given the nature of Islam, by Israel’s unilateral disengagement or surrender.  Thus far, Israeli governments have chosen the path to oblivion.  I dare say, however, they will not succeed.